NJ lawmakers pass anti-BDS legislation

[Little Tich]

6. I thought you knew more about the US constitution than me, but in this case, apparently I was wrong.

This case is very similar to the NY executive order to stop state agencies from doing business with any institution or company that supports BDS. Apparently, state agencies using economic means to suppress entities and persons exercising their right to free speech can be seen as unconstitutional. The argument against the NY executive order can also be made against the NJ anti-BDS legislation, so I'll provide examples of that argumentation to prove my point about the NJ legislation (sorry for the long excerpts, but context...):

CUOMO AND B.D.S.: CAN NEW YORK STATE BOYCOTT A BOYCOTT?
Source: The New Yorker, JUNE 16, 2016

Last week, Governor Andrew Cuomo, of New York, signed an executive order directing state agencies to stop doing business with any institution or company that supports the Boycott, Divestment, and Sanctions (B.D.S.) movement, which aims to pressure Israel to reform its policies toward Palestinians. Cuomo portrayed the new policy as a simple tit for tat. “If you boycott against Israel, New York will boycott you,” he said at New York City’s Harvard Club, in a speech announcing the new policy.

Civil-liberties groups responded to the announcement with alarm. They were especially troubled by the state’s plan to draw up a list of entities that support B.D.S., an idea that drew comparisons to McCarthyism. “Government can’t penalize people or entities on the basis of their free expression, and political boycotts are a form of free expression,” the New York Civil Liberties Union said in a statement. “Creating a government blacklist that imposes state sanctions based on political beliefs raises First Amendment concerns, and this is no exception.”

Does Cuomo’s order violate the First Amendment? The argument that it does is straightforward. The Supreme Court has held that boycotts are a form of free speech. Under the so-called unconstitutional-conditions doctrine, the government can’t force the recipients of “benefits” to give up constitutional rights—including the right to free speech and political affiliation. (For example, even though there’s no constitutional right to Medicaid, Congress couldn’t decide to provide it only to Democrats.) The Court has also specifically held that government contracts are a benefit subject to the unconstitutional-conditions rule. Put that all together and New York’s boycott of B.D.S. supporters looks shaky: the state is withholding its business from organizations because of their political positions.

But, according to several prominent scholars I spoke with last week, the issue isn’t so clear-cut. “While I wouldn’t say categorically that there’s a First Amendment violation here, I would say that it raises a number of thorny First Amendment issues,” Ronald Collins, a law professor at the University of Washington, said.

The first challenge is figuring out whether companies that join B.D.S. are engaging in free speech at all. New York officials argue that they aren’t, and that therefore the state’s boycott is on solid legal ground.

Read more: http://www.newyorker.com/news/news-desk/cuomo-and-b-d-s-can-new-york-state-boycott-a-boycott


Why Andrew Cuomo’s BDS Law Should Worry All Israel Supporters
Source: The Forward, June 17, 2016

(JTA) — If you’re a supporter of Israel and of the Jewish community, you should be very worried about a new executive order issued by New York Gov. Andrew Cuomo on June 5.

While billed as an initiative to prevent New York state from supporting the Boycott, Divestment, Sanctions (BDS) movement, the law actually constitutes a frightening attack on free speech while likely creating a backlash that will do harm both to Israel and the Jewish community.

Cuomo’s order mandates the creation of a list of every company worldwide that “engage[s] in any activity, or promote[s] others to engage in any activity, that is intended to penalize, inflict economic harm on, or otherwise limit commercial relations with Israel or persons doing business in Israel for purposes of coercing political action by, or imposing policy positions on, the government of Israel.”

That is, a company might end up on the list because it actually chooses to boycott Israel. Or it might end up on the list because of a statement by its CEO or a board member. Since the executive order makes no distinction between what’s inside or outside the Green Line — Israel’s pre-1967 borders — a company that chooses to set up shop in Israel proper but avoid the settlements might find itself on the New York blacklist. Ditto a company whose leadership publicly calls for a distinction between Israel and the settlements, or who otherwise criticizes government policy.

I oppose boycotting or divesting from Israel. Yet the right to free speech means, in the famous words of Evelyn Beatrice Hall, that even if “I disapprove of what you say … I will defend to the death your right to say it.” The way to fight distasteful speech is with more speech, not by shutting down the other side.

Cuomo’s action constitutes a dangerous threat to this right. As explained by Lara Friedman of Americans for Peace Now, which also opposes BDS, the order seeks to achieve “the goal of chilling/suppressing such constitutionally protected free speech. It does this by defining such free speech – including the act of merely calling for boycotts – as de facto illegitimate.”

Read more: http://forward.com/opinion/343027/why-andrew-cuomos-bds-law-should-worry-all-israel-supporters/